Theory
Reference:
Schmidt A.V.
The principle of justice in the construction of a special legal status (historical and theoretical aspect)
// Law and Politics.
2024. ¹ 11.
P. 1-10.
DOI: 10.7256/2454-0706.2024.11.71747 EDN: GGITJQ URL: https://en.nbpublish.com/library_read_article.php?id=71747
Abstract:
The subject of the study is the principle of justice. The idea of justice is revealed in the context of the legal regulation of the rights and obligations of persons with special legal status. The essential aspects of the principle of equity at the individual and regulatory level are analyzed. It is noted that the principle of justice in relation to special legal status means the following: 1) any specific rights and obligations included in it must be established on certain grounds; 2) the content of these rights and obligations must correspond to the nature of these grounds. Thus, violations of justice in the construction of a special legal status can be of two kinds: either arbitrary (groundless) granting of rights or assignment of duties, or, if there are such grounds, excessive or insufficient nature of rights and duties. The research methodology includes the following approaches: comparative analysis, abstraction, deduction, induction, idealization, formalization, axiomatic and logical method. It seems important to distinguish between the aspects of justice: qualitative and quantitative. The qualitative characteristic of justice is to ensure that the grounds of a special legal status, on the one hand, and its content, on the other, are homogeneous in their value nature; for example, that an act of positive social significance (merit) generates a positive legal assessment expressed in the provision of additional benefits (encouragement), and vice versa. The quantitative measurement of justice assumes that the volume of social benefits or encumbrances inherent in a special legal status reflected, at least with some degree of accuracy, the similar significance of what served as the basis for this. From a practical point of view, the fairness of a special legal status can be revealed at two levels: individual (law enforcement) or normative (law-making).
Keywords:
qualitative change, quantitative change, the common good, general legal ideas, justice, proportionality, validity, equivalence, special legal status, principle
Practical law manual
Reference:
Baikova S.R.
Expanding the use of the newly discovered and new circumstances to fill gaps in legislative regulation: the agony of the institute or an illustration of a natural development?
// Law and Politics.
2024. ¹ 11.
P. 11-40.
DOI: 10.7256/2454-0706.2024.11.72315 EDN: JJNVGZ URL: https://en.nbpublish.com/library_read_article.php?id=72315
Abstract:
The subject of research of this article is a particular case of extended application of the newly discovered and new circumstances in a situation that does not essentially dispose to such application, namely: regulation of the right of a creditor to appeal against a judicial act that is the basis for inclusion of another creditor's claim in a bankruptcy case of their common debtor. The reasons for such a decision of the legislator, the historical path of development of legal regulation of this situation in Russia are analyzed, other examples of cases of extended application of the newly discovered and new circumstances to fill gaps in legislative regulation are given. The hypothesis of universality of the procedural institute of revision of a judicial act on newly discovered and new circumstances and the problem of limits of the principle of legal certainty is put. The problem of expanding the cases of application of the newly discovered and new circumstances in the light of the principle of legal certainty in civil proceedings is not investigated in detail in the scientific literature or investigated indirectly, when resolving other issues. The author believes that it is important to analyze the following issues in the formulation of this fundamental problem. As a result, the author comes to the conclusion that there are no grounds for extending the provisions of the institute to situations of revision of the judicial act-foundation, as well as evidence of the need for fundamental reform of approaches to the institute of newly discovered and new circumstances. The new look of the institute should ensure the balance of the principles of legality and legal certainty. The results of the work can be used for the development of procedural legislation, in the educational process.
Keywords:
universality of procedural form, miscarriage of justice, expansion of grounds for review, extraordinary appeal, principle of legal certainty, judicial review, new circumstances, newly discovered circumstances, extra-institutional review, self-control of the court
Law and order
Reference:
Milchakova O.V.
Control of foreign investment in the fisheries sector
// Law and Politics.
2024. ¹ 11.
P. 41-62.
DOI: 10.7256/2454-0706.2024.11.72377 EDN: KCUDEB URL: https://en.nbpublish.com/library_read_article.php?id=72377
Abstract:
The object of the study is the relations connected with foreign investment in strategic sectors of the economy, the subject is the relations connected with foreign participation in the sphere of fisheries. The following topics are considered in detail: the grounds for increased control over foreign investments in the sphere of fisheries; the concepts of «strategic economic entity engaged in fishing», «foreign investor», «group of persons, which includes a foreign investor», used for the purposes of regulating relations in the sphere of fisheries; legislative restrictions on foreign participation in the sphere of fisheries; consequences of violation of the rules on restricting foreign participation. Particular attention is paid to the issues of interpretation of the concept of «strategic economic entity», and to the interpretation of the law when applied to the foreign investor using the right to extract (catch) aquatic bioresources. The methodological basis of the study was formed by general logical methods of theoretical analysis, special formal-legal, empirical methods and the method of technical-legal analysis. The made the following conclusions regarding the specifics of foreign participation control in the fisheries sector: 1) it is justified to use a broad approach to the concept of a «strategic economic entity», which allows recognizing a company as such regardless of whether it has the right to extract (catch) aquatic biological resources; 2) the legal regime of a single economic entity applies to a group of persons and the same restrictions apply as to an investor acting autonomously; 3) in the fisheries sector, stricter barriers to foreign participation are established, compared to other strategic industries; 4) in case of violation of the legislation in the sector under consideration, measures of both civil and administrative nature are applied simultaneously.
Keywords:
a worthless transaction, national security, strategic enterprise, aquatic bioresources, Government Commission, Federal Antimonopoly Service, fisheries, foreign investor, foreign investment, recovery of damages
Practical law manual
Reference:
Ganeva E.O.
Challenging of the debtors transactions in bankruptcy proceedings
// Law and Politics.
2024. ¹ 11.
P. 63-76.
DOI: 10.7256/2454-0706.2024.11.72282 EDN: KPPNSC URL: https://en.nbpublish.com/library_read_article.php?id=72282
Abstract:
In this article, the focus is directed to identifying legal concerns of challenging of the debtors transactions in bankruptcy proceedings. The issues of definition of transaction which is subjected to challenging in bankruptcy, the particularities of such acts as abandonment of a claim and conclusion of an amicable agreement are identified and addressed; the specificity of challenging of a chain of transactions in bankruptcy and particular acts on the implementation of the contract are determined. The problem of dual qualification of transactions, which are challenging under special bankruptcy grounds and in accordance with general rules of Civil Code of the Russian Federation about invalidity of transactions is highlighted in the article. Methods of formal logic (analysis, synthesis, deduction, induction), methods of systematic research and technical-legal analysis, dialectical and formal-legal methods make it possible to the author to identify theoretical and practical legal problems related to challenging of debtors transactions and the existing approaches to their resolution. It's concluded that broad interpretation must not be applied in cases which are not connected to bankruptcy. The opportunity of challenging of acts that are provided by Bankruptcy Law must not be applied to legal relations which are not complicated by bankruptcy. Challenging of a chain of transactions requires a certain approach (dual qualification). We mustn't limit to an assessment of particular execution without the scope of the whole legal relations between parties during challenging acts of execution of the contract. If the transaction has signs of the invalidity under special bankruptcy grounds, its qualification by articles 10, 168 of Civil Code of The Russian Federation is unacceptable. But dual qualification during challenging in bankruptcy is acceptable if we apply provisions of Bankruptcy Law and article 170 of Civil Code of the Russian Federation.
Keywords:
linked transactions, transactions with preference, suspect transactions, bankruptcy estate, invalidity of transactions, creditor, debtor, challenging of transactions, sham transactions, bankruptcy